HKSAR v. POON CHI HUNG, WILLIAM

HCMA 929/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 929 OF 2000

(ON APPEAL FROM STV 331/1998)

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J U D G M E N T

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1. The Appellant appealed against his conviction on a Fixed Penalty summons. The information showed that he drove a private car registration mark HH 3136, on a road at a speed exceeding 50 kilometres per hour being the speed limit in force on that road, namely at a speed of 65 kilometres an hour. This offence is contrary to section 41(1)(a) Road Traffic Ordinance, Cap. 374.

2. On 23 November 2000 I heard the Appellant's appeal against conviction and dismissed it, advising that I would give my reasons later. I now advise my reasons for dismissal.

3. The Appellant pleaded not guilty but was convicted after trial. I note from the record that it was an exceptionally long trial, 12 days' court time having been required.

4. The Appellant was tried for this offence and convicted in 1999. However, he appealed his conviction and in a judgment delivered on 25 October 1999, Li DJ allowed the appeal and ordered a retrial. The judge on appeal considered that the trial Magistrate could not have been satisfied beyond reasonable doubt that the laser gun which detected the speed of the Appellant's vehicle had, in fact, accurately detected that speed. This appeal is against Appellant's conviction on the re-trial.

5. There was no dispute that the Appellant was driving the car on the road in question at the material time, nor that he was intercepted by police and given a Fixed Penalty notice. The only issue before the Magistrate was whether he drove at a speed exceeding the speed limit and the Magistrate noted that the burden rested on the prosecution to prove beyond reasonable doubt that the Appellant did drive at a speed exceeding 50 Km/h.

6. On appeal, the chief attack of the Appellant was on the reliability and accuracy of the laser speed detection system, that being LT120-20 (serial no. 7859), which was the equipment used by the police officer, PW2, to detect the speed of the car. An independent expert, an Associate Professor of H.K.U.S.T. was called by the prosecution to give evidence about tests and experiments he had carried out on the laser gun in question and on other laser guns of the same model and to give his expert opinion on the reliability and accuracy of the laser gun.

7. The Magistrate considered the witness's curriculum vitae and expertise and admitted him as an expert in designing tests on the laser gun and for commenting on its accuracy and reliability.

8. After what must have been an exhausting trial during which the Appellant canvassed all aspects of laser technology insofar as it applied to the laser gun and produced his own purportedly expert witness, the Magistrate concluded that the laser gun was reliable and accurate when used on normal vehicles on the road without flat or reflective surfaces. He also found that the laser gun functioned as it was required to and that it could measure speed accurately within the specified error margin.

9. The competence of the police officer operating the laser gun and also his credibility was challenged. The Magistrate was satisfied first as to the officer's training and although he accepted that in minor matters of his evidence there were discrepancies, he did not consider they were such as to prevent his accepting his evidence.

10. The Magistrate listened to the Appellant's purported expert witness giving evidence for 2 1/2 days but concluded, having heard the evidence and considered his qualifications, that he was not an expert for the purposes of the matters that needed to be determined on the trial. The Magistrate was satisfied that apart from the general accuracy of the laser gun technique, the particular gun was working correctly at the material time, when the Appellant's vehicle was shot by the gun. He was satisfied that the laser gun operator was both a competent operator and a credible witness.

11. The Appellant made a lengthy closing speech at the trial setting out in great detail all the matters that he considered pertinent to the general accuracy of the laser gun procedure and method. To a large extent, those matters were reiterated as Amended Grounds of Appeal.

12. There were a number of such Amended Grounds, the first being that the Magistrate wrongly deduced that the wrong reading found during the Appellant's alignment test on the laser gun was the effect of the shiny flat stainless steel plate. The Appellant commented on and criticised the Magistrate's conclusion. He criticised the tests of the expert witness produced by the prosecution. The Appellant also considered that the Magistrate had concluded wrongly that the accuracy of the laser gun, had not been adversely affected by external electromagnetic interference. The Appellant submitted that it was possible that other interference in the environment would disturb the accurate operation of the laser gun. I note that this matter was commented on by the Magistrate and was within his purview at the time he made his findings.

13. The Appellant submitted that the Magistrate wrongly accepted the prosecution expert as an independent expert witness on the laser gun and questioned his methodology. He suggested that the expert was inventing a new theory of physics and that he incorrectly took the view that the laser gun was not affected by external interference. The Appellant complained particularly that the Magistrate failed to consider the degree of independence of the expert witness and re-canvassed the points he made before the Magistrate.

14. The Appellant complained that the Magistrate had wrongly rejected his witness as an independent expert on laser guns and failed to give any reasons for so doing. He reiterated the many claims that he considered established his witness as an expert. The Appellant contended that the Magistrate had wrongly considered his own evidence to be exaggerated and was wrong not to believe him.

15. The Appellant maintained that he had "many years of training, successful experience and achievement in professional security management at top level position, in the best of the class international company at his late twenty and he, at the present career, is a director of a security equipment company." He said he would like to point out to the court that the police "had means to improve the reliability and objectives of the laser gun procedure such as connecting it to proper grounding, avoiding high interference areas and connecting it to a computer so that the computer can record in video or photographic form, how the speed is detected and that they should train the laser gun operator properly.

16. None of these matters was new but simply a restating of material that had been put before the Magistrate in great detail.

Ground 1

17. The Appellant had carried out certain alignment tests on the laser gun prior to the trial and by using shiny, flat, stainless steel plate had obtained some wrong readings from the laser gun. The prosecution expert explained this was the result of the high reflection from the shiny surface. The Magistrate noted that it was possible that reflectivity might be a weak point on this type of speed detection device, but concluded that most vehicles did not have the type of mirror reflective surface used in Appellant's experiments.

18. The Magistrate accepted the opinion of the expert and found beyond reasonable doubt that the weak point would not affect the reliability of the laser gun in the speed detection of normal vehicles, in particular the Appellant's own vehicle. After hearing the expert's evidence, the Magistrate concluded that laser gun, radar and VASCAR systems are all accurate reliable speed detectors.

Ground 2

19. The second ground related to the accuracy of the laser gun as it might be affected by electromagnetic interference. Again, the Magistrate considered the expert evidence and concluded that at the highest, it could be said that the laser gun might be subject to interference by a mobile telephone, but in that case the laser gun would produce an error message, that is no reading at all, rather than a wrong reading.

20. The laser gun operator's evidence was that when he shot the gun at the Appellant's vehicle, no error message had appeared on the screen of the laser gun and there was no evidence before the Magistrate suggesting that the laser gun was subject to interference at the time he detected the speed of the Appellant's car.

Ground 3

21. The third ground related to whether or not PW4 was an independent expert given Appellant's challenge to both his expertise and independence. The Magistrate having considered his curriculum vitae and assessed his knowledge admitted him as an expert for designing tests on the laser gun and for commenting on its accuracy and reliability. He specifically found that he was an independent witness, unrelated to the vendor of the laser gun. In the circumstances of this case, it was for the Magistrate to decide whom he would, or would not, accept as an expert.

22. Similarly, with the engineer, called by the Appellant as an expert witness. The Magistrate heard his evidence and submissions by both parties as to whether or not he was to be treated as an expert and concluded that he should not.

23. The Magistrate had the advantage of hearing the Appellant's purported expert give his evidence over a lengthy period and it was for him to decide on his expertise. I can see no grounds for interfering with that decision.

24. The Appellant claimed that the Magistrate wrongly relied on the evidence of the laser gun operator, but that too was a matter for the Magistrate who heard the evidence and could assess his training and knowledge.

25. The operator had attended a 2-day training course in 1997 on how to operate a laser gun, the same model as used in this case. The course included basic operating procedures and the operator had the opportunity to practise using a laser gun to detect the speed of vehicles. He had to sit an examination for the course and passed. After training, he was called on to operate a laser gun 4 or 5 times a week. The Magistrate was satisfied beyond reasonable doubt that the operator was experienced in using the gun.

26. The operator confirmed that the gun was accurate when he collected it on the day in question. He described how he set it up. The weather was fine, the road was dry and traffic was light. He aimed the laser gun at the front of the vehicle. There was no obstacle between the gun and the car, nor was there any wall near the car. The gun gave a reading of 69 Km/h when the Appellant's car was 40 metres away. Clearly, this was evidence which, if the Magistrate accepted it, showed that the laser gun had been operated correctly on the day in question.

27. As for the Appellant's complaint that the Magistrate commented that his evidence was exaggerated and incredible, again that judgment was one for the Magistrate to make having seen and heard the Appellant giving evidence. There is nothing to show that his finding was in any way unreasonable and in such a case, an appellate court is not in a position to interfere.

28. The prosecution relied also on a certificate pursuant to section 28 of the Evidence Ordinance, Cap. 8. Under that section, the contents of such certificate shall stand as prima facie evidence for matters contained therein. That certificate stated that on 24 January 1998 and 1 August 1998, that is before and after the date of the offence, that the manufacturer checked the laser gun, found it was functioning properly and that the test results were accurate.

29. The Magistrate relied on the case of HKSAR v. Sham Wai Man, Walker, HCMA 373 of 1999 which confirmed the proposition that the prosecution could rely on such a certificate. The Magistrate found that the certificate was prima facie evidence of the facts stated in it.

30. After considering the evidence, the Magistrate concluded that the defence had not, on the balance of probability, established that the contents of the certificate were inaccurate. Accordingly, he drew the inference that the laser gun was operating normally between the 2 dates of inspection in the certificate.

31. In concluding his Statement of Findings, the Magistrate found beyond reasonable doubt that the laser gun operator shot the laser gun at Appellant's car and obtained a reading of 69 Km/h, that being a correct assessment of the speed of the car. He noted that the Appellant had exceeded the speed limit by 19 Km/h. He had cogent evidence about the accuracy and reliability of the laser gun. For the offence not to have been committed, the margin of error would need to be at least 19 kilometres.

32. The Magistrate relied on Penny v. Nicholas [1950] 2 AER 89 where it was stated:

"The question in the present case is whether, if evidence is given that a mechanical device, such as a watch or speedometer, recorded a particular speed or a particular time, that recording is prima facie evidence on which the court can act. In a particular case the court might refuse to act on it, but here counsel for the respondent called our attention to the fact that the difference is very great. The offence is driving at a speed exceeding thirty miles an hour, and the evidence is that the speedometer showed that the appellant was exceeding that speed by ten miles an hour. It would be a very considerable error if the speedometer was as much out as that."

The Magistrate noted at the outset of his findings that for the purposes of this offence he had only to be satisfied that the Appellant was exceeding the speed limit by 1 kilometre an hour.

33. Having considered the facts of this case and having heard the Appellant's submissions, I am satisfied that the Magistrate dealt with this case correctly. He assessed the accuracy of the laser gun procedure and was satisfied on that matter. He satisfied himself as to the competence of the laser gun operator. He concluded, for reasons which he explained, that the Appellant was guilty of speeding. I dismiss this appeal against conviction.

Costs

34. At the conclusion of this appeal, the prosecution applied for costs of the appeal to be awarded to the prosecution, according to section 13 of the Costs in Criminal Cases Ordinance, Cap. 492. The relevant part of that section provides that where a defendant unsuccessfully appeals to a judge from any conviction, order or determination of the Magistrate and the judge is satisfied that the appeal is, or was without merit, the judge may order that costs be awarded to the prosecution.

35. I should say at the outset that I consider that this appeal had no merit whatsoever. The Appellant was able to canvass his case over a very lengthy period in the Magistracy; the Magistrate found against him. There has been no new material or points of law raised before this Court on this appeal. I note that in his closing speech to the Magistrate, the Appellant commented at one point that:

"In short, the defendant has no financial problem, driving point problems or personality problem to push him asking for trouble in related to this lengthy and costly litigation in which he has to make use of his very valuable time and he has to employ expert to find out the facts related to the concerned laser gun.

The only possible personality problem that the defendant may have is that he always insist when he believes he is right and he is a very stubborn person who believes that whatsoever wrong, cannot be right if somebody insist to prove that it is wrong."

36. I accept that the Appellant is entitled to vigorously defend himself in respect of a Fixed Penalty ticket where he believes that the procedure adopted was wrong and it is clear the Appellant had a very full opportunity to do so. The Magistrate gave a proper ruling after assessing the evidence. It appears that the Appellant's "personality problem" means he is not inclined to accept any verdict other than his own.

37. Today, the Appellant has not put forward any new proposition of law, or different material that needed to be examined by this Court. I consider this is an unmeritorious appeal and that this is a proper case in which an order for costs to be made against the Appellant.

38. Before making a ruling on costs, I asked the Appellant to address me on that topic and in particular to address as to his means to pay any such order. The Appellant informed me he did not wish to give the Court any information about his means.

39. I order that the Appellant pay to the Prosecution $5,000.00 as costs of this appeal. Payment is to be made within 14 days, from 7 December 2000.